Disputed Tape Played At Lehigh Homicide Trial

November 01, 1985|by DEBBIE GARLICKI, The Morning Call

A half-hour taped conversation between a man on trial for murder and another suspect was played for a Lehigh County jury yesterday after legal arguments were heard about the tape, much of which was inaudible and fraught with static.

The state Supreme Court's chief justice directed the court to allow the tape in the case after Judge James N. Diefenderfer ruled that it should not be admissible because of interference that created gaps in the conversation between David Yohn and Jerry Southerland.

Yohn, 41, of Coopersburg has been charged with criminal homicide in the January shooting of Andrew Kollar, 35, of Upper Milford Township during an alleged robbery attempt. A search of Kollar's Old Zionsville house revealed marijuana, cocaine and about $20,600 in cash.

State troopers, who charged three men in the alleged plot, used electronic surveillance to monitor the conversation this past March.

Yohn's attorney, Richard Makoul, objected to the admission of the tape, claiming sentences could be taken out of context and subject to the jury's speculation about what the two men were discussing.

Southerland, 27, of Quakertown R.2 was charged with burglary in a negotiated plea whereby he was free on his own recognizance and agreed to testify against Yohn.

Police do not know his whereabouts and have charged him with criminal homicide because he violated the conditions of the plea.

A third man, Donald Lynn, 27, of Center Valley R.2, has agreed to plead guilty to third-degree murder and testified this week against Yohn.

Trooper Robert Gerken testified that he attached surveillance equipment to Southerland, who met Yohn at the Eagle Hotel in Trexlertown.

Gerken said he listened to the conversation from a recorder and receiver in a police vehicle that followed the pair.

The jurors were given a transcript of two minutes of the tape when that segment was played.

Part of the transcript reads:

"Dave: 'You didn't give my name at all?'

"Jerry: 'I did not give your name at all.'

"Dave: 'Well, --- it because I don't know nothin'.'

"Jerry: '. . . the same. I don't know nothin' about nothin' - I wasn't there. Everything is taken care of. You got rid of all the ---.

"Dave: 'Everything's gone, man.'

"Jerry: 'They know about . . .; they asked, umm, they said what about ah . . . something about a .45? You got rid of that right, you didn't --- around and keep it?'

"Dave: 'No.' "

Other parts ot the transcript read:

"Jerry: 'Are you sure that ---empty shell that you popped in your pocket was the --- one out of that shotgun. It wasn't the --- something you had in there for hunting? You're sure, ok.'

"Dave: '(UNINTELLIGIBLE) I put it in my pocket later.'

The last two sentences of the two-minute segment say:

"Dave: 'It's a --- story, (UNINTELLIGIBLE).'

"Jerry: 'I hope that it don't get back to Donnie though, huh? I hope not cause he'll --- run his mouth.' "

Diefenderfer initially ruled that the tape could be played but said he had "some reservations" because of the quality. When Assistant District Attorney Michael McIntyre asked that it be admitted as evidence, the judge ruled Wednesday that it was not admissible.

"I felt that there were such gaps between sentences and inaudible portions and it was just impossible to understand what the total content of the tape was that it would have to be guess work and speculation," Diefenderfer said.

He said he was contacted by Chief Justice Robert Nix of the state Supreme Court , who directed him to allow the tape to be heard "to preserve the issue of admissibility - on whether the tape should have been heard - for a later time."

"It has been determined that you're going to hear this tape," Diefenderfer told the jury after lunch.

He gave them instructions that the transcript was not to be considered as evidence but was only to assist them.

Lynn testified that Yohn and Southerland asked him on Jan. 23 if he "wanted to make $3,000."

He said they told him they were going to rob a "dealer's house" and needed someone unknown to Kollar.

He said he was to get access to Kollar's house by saying he had car problems, get Kollar to the floor and wait for Yohn and Lynn to tie him up.

He claimed Yohn was carrying a sawed-off shotgun and gave him a .45- caliber gun.

The plan went awry and Kollar ran from his house, according to Lynn, who said he heard a blast and saw Yohn holding the shotgun on the steps of Kollar's porch.

A forensic pathologist who did an autopsy said 12 shotgun pellets were taken out of Kollar's back.

Shotgun shells found at Yohn's home contained 15 pellets, according to testimony.

Lynn testified that he and Yohn dismantled the shotgun and .45-caliber gun, threw some of the parts in the Lehigh River and burned the butt of the shotgun in a potbelly stove in Yohn's cellar.

Yohn's wife, Connie, said her husband had owned a .45-caliber gun before it was stolen by a man who she was told lived with Southerland.

Yohn, described as an avid hunter, reported the theft to police but did not pursue charges. Mrs. Yohn said her husband sold the man the gun and kept it registered under his name because the man was out on parole.

She testified that Yohn, a self-employed painting contractor, left their house at about 7 p.m. the night of the shooting and told her he was going to work on an old farmhouse.

He was home by 12:30 a.m., she said, because they had an "agreement" that he wouldn't stay out past that time.

Kollar's neighbor said he heard a blast at about 11:40 p.m.

Mrs. Yohn and Yohn's father, Samuel, testified that they never saw a sawed- off shotgun in the house.